The Explainer: Assault and bikery in the first degree
It’s time the Explainer got back in the saddle, after a steady three weeks of LUG-ing it up during the Giro d’Italia. I had a good time and I hope you did, too. What a spectacular race, with an unexpected outcome. Hats off to Ryder Hesjedal, the first Canadian grand tour winner in history. The Tour de France is going to be hard-pressed to match the excitement of the 2012 Giro. Of course, I’ll be watching either way.
Now, while much of our collective attention was turned to Italy, there were obviously other races going on in other parts of the world. Indeed, just a few hours after Taylor Phinney snagged the maglia rosa in the opening time trial at the Giro, riders were lining up in Anderson, South Carolina, for the Electric City Circuit, part of the 2012 USA CRITS Speed Week series.
What happened in that race remains the subject of dispute, but it did cause several of you to write in with questions regarding the consequences of what one famous television commentator might call mid-race “Argy Bargy.”
I’m including two letters from Explainer readers from the eight I received. I think these two are fairly representative of the others.
After hearing about Isaac Howe crashing during Speed Week’s Electric City Circuit on 5 May, I am curious about the legal complications that face Jonathan Atkins. Howe has accused Atkins of intentionally causing the crash. From the story I read, it seems that various accounts claim Atkins either grabbed Howe’s handlebar bar or struck it intentionally, causing a crash. Howe now has a broken collarbone.
If an investigation determines that Atkins intentionally caused an accident, how liable could be potentially be? In this situation, is there potential for criminal charges to be raised?
What options are available to Howe? Can he sue for damages associated with medical bills, lost wages, etc?
If an investigation concludes that this is a “racing incident” what are the options available to either rider?
I just got done reading about the accident at the Electric City Criterium and have to wonder how someone could be charged with a crime or end up getting sued by someone for a crash in a bike race.
Couldn’t you argue that a crash is a crash and crashes happen in racing? I sign a waiver every time I put my front wheel on the line. I know stuff happens and I expect it to. I sure as hell ain’t going to call the cops or a lawyer every darn time something happens.
Dear Bo and Dave,
To start, the incident at Electric City hadn’t really caught my attention until I started getting emails about it. It is my understanding that the case remains under investigation, both by local police and by USA Cycling. Aside from briefly touching upon the competing description of the events that led to Isaac Howe’s crash and broken collarbone, I sure as heck am not going to offer my take on what happened.
Nonetheless, the incident does, despite what Dave suggests, raise a few interesting legal questions. Let’s start out with Dave’s assertion that Howe’s contact with the pavement was just part of the sport and something anyone who races should come to expect. Assume for a moment that the “accident” was the result of an intentional and malicious act. In that case, I think the tested legal principle of taurus stercoris might apply to your argument, Dave.
As you point out, everyone who has ever raced a bike in the U.S. – from local citizens’ racers to top professionals – is intimately familiar with the release form we sign before being allowed to toe the line. Some of us even read the darn things before we sign them. But what is it that you’re actually signing?
Well, it isn’t just a piece of paper acknowledging that “shit happens,” when you race. I’ve muddled through the topic before, but briefly signing a release only waives claims stemming from simple negligence on the part of the promoter and other participants.
Normally, we all owe what lawyers call “a duty of care,” to others. That means that during the course of your day-to-day activities, you really ought to be paying attention and not, for example, be staring at the girls on the sidewalk when you’re driving your car down the road. It also means that you may, as the promoter of an event, take steps to minimize risks to participants. But in bike racing, there are certain “inherent risks” involved in the sport, so we get the waiver. Without it – or, as is the case in states like my own – statutory protection, event organizers would be nuts to put on a race in which anyone risked an accident or injury.
What the release does not do is protect an organizer from gross negligence – like putting on a race over streets where one or more manhole covers have been removed. Nor does it protect anyone from intentional acts, such as those Jonathan Atkins stands accused of.
The question at issue in the Electric City matter is whose description of events is accurate. If, as Atkins says, he simply bumped Howe in the normal course of racing his bike, then that’s it. No one really has a claim, even if it could be argued that Atkins took a bad line and caused Howe’s crash through negligence.
Conversely, if Howe’s description of events turns out to be true, his advice to Atkins – “You better get a lawyer.” – is spot on. Howe claims that Atkins actually jerked him to the ground by reaching over and grabbing Howe’s wrist or handlebars.
Now, if that were true, it would satisfy the “intent element” of an actual crime and would open a whole new can of worms for Mr. Atkins.
Firstly, if law enforcement finds that Mr. Atkins actually carried out the act of grabbing Mr. Howe’s wrist or bars and “jerking him to the ground,” the case would end up in the hands of local prosecutors. It’s there they make the call as to which part of the criminal code was violated. Than can make the difference between a misdemeanor assault charge or a far more serious felony, aggravated assault. In South Carolina, the statute uses the terms “assault” and “battery” interchangeably, so I will as well.
If they go for the felony, he could be charged with “assault and battery of a high and aggravated nature,” a violation of §16 3 600(B) of the South Carolina Code of Laws. That violation carries a maximum sentence of 20 years in prison, but there would be a serious hurdle for a prosecutor to overcome, given that a collarbone break may not meet the “great bodily injury” standard. A more likely felony charge would be a violation of §16 3 600(C), first degree assault and battery, where the prosecutor simply has to show that the victim was injured or that the assault was carried out in way “likely to produce death or great bodily injury.” Odds are pretty good that one could make a case for that. Again, there is an intent element to this crime, meaning that the defendant had to intend to perform that act of assault. If prosecutors are unable to show beyond a reasonable doubt that Mr. Atkins intended to grab Mr. Howe or his bike, he will not be convicted.
Even if Mr. Atkins is cleared of a criminal charge, that doesn’t mean that he is home free. No, he cannot be successfully sued for simple negligence in a case resulting in an accident during a bike race. It would even be hard to prove gross negligence or even recklessness. The key here again would be proving intent. Proving that, though, is easier in Civil Court than it is in Criminal Court. At least the standard of proof is lower in Civil Court than it is in Criminal Court. Remember that the standard in American Criminal Courts is “beyond a reasonable doubt,” the highest standard of proof in the judicial system. That’s rather formidable.
In most civil actions, the Court applies a “preponderance of the evidence” standard, meaning that there should be a greater than 50 percent chance that the allegation is true. That could be huge when it comes to eyewitness testimony, even if it is impeached by the defense.
Damages? If I were representing somebody in a case involving a claim against someone who intentionally caused an injury and I could prove it, I would go for the standard medical costs, loss of income, pain and suffering and, as a kicker, try for punitive damages as well.
Again, I am not saying that Mr. Atkins did – or didn’t – do what Mr. Howe accuses him of doing. I am saying, however, that anyone shown to have intentionally caused an accident during a race by reaching out and jerking someone to the ground is guilty of more than simple negligence. He’s guilty of both criminal assault and liable for the civil consequences that would stem from that act as well. In simple terms, he’s a jerk and, like the man said, he “better get a lawyer.”
The Explainer is a weekly feature on Red Kite Prayer. If you have a question related to the sport of cycling, doping or the legal issues faced by cyclists of all stripes, feel free to send it directly to The Explainer at Charles@Pelkey.com. PLEASE NOTE: Understand that reading the information contained here does not mean you have established an attorney-client relationship with attorney Charles Pelkey. Readers of this column should not act upon any information contained therein without first seeking the advice of qualified legal counsel licensed to practice in your jurisdiction.
Follow me on Twitter: @Charles_Pelkey